United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50330

____________

Good River Farms, L.P., 

Plaintiff—Appellee, 

versus

TXI Operations, L.P.; Martin Marietta Materials, 

Incorporated, 

Defendants—Appellants. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:17-CV-1117 

______________________________

Before Smith, Haynes, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge: 

This appeal follows a “120-year flood” event that occurred near 

Austin, Texas, on October 30, 2015. The disputing parties own land directly 

across from each other along the Colorado River. Plaintiff-Appellee Good 

River Farms (“Good River”) sustained severe damage to its pecan farm and 

subsequently sued Defendants-Appellants Martin Marietta Materials and 

TXI Operations (collectively “Martin Marietta”), who utilize the land for 

strip mining. Good River claimed that the mining resulted in the presence of 

a large pit filled with groundwater that breached and released a deluge of 

United States Court of Appeals

Fifth Circuit

FILED

April 25, 2024

Lyle W. Cayce

Clerk

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impounded surface water onto their property. Following a jury trial, Good 

River was awarded $659,882.00 in damages, prevailing on claims for 

violations of Texas Water Code § 11.086 and for negligence. Martin Marietta 

appealed. Mindful of our deferential review of jury verdicts and the unique 

factual scenario present in this case, we AFFIRM. 

I

Good River operates a pecan farm on the north side of the Colorado 

River. In 2015, Good River’s property covered 377 acres and included 8,000 

pecan trees, as well as several buildings where equipment and harvested 

pecans could be processed and stored. Martin Marietta operates a sand and 

gravel mine on the south side of the Colorado River, directly across from 

Good River’s pecan farm. Martin Marietta’s operation includes the 

presence of a large freshwater pit near the river, directly across from Good 

River. 

Parts of Good River’s pecan farm are in a 100-year floodplain. In the 

past, Good River experienced flooding in 1992 and 2013, although no damage 

occurred on the property. However, on Martin Marietta’s property, the 2013 

flooding caused two breaches on the west and east sides of the north end of 

the freshwater pit. In early 2015, Dennis Schiwitz, Martin Marietta’s 

Equipment Operator, repaired the west breach of the pit but failed to repair 

the east breach until 2017. In 2015, the conditions outside Austin led to a 

“120-year flood” event. Both parties’ properties flooded, with Martin 

Marietta’s facilities covered by up to three feet of water. 

Testimony elicited at trial indicated that water overflowed the north 

wall of Martin Marietta’s freshwater pit and ran perpendicular to the current 

of the Colorado River to reach Good River’s property. For example, S. 

Turner Wimberly, manager and part owner of Good River, testified that he 

had been present at the property one or two days before the flood. He stated 

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that immediately prior to October 30, Martin Marietta’s southern 

embankment “had piled dirt really high” and looking across from Good 

River’s property, none of Martin Marietta’s property behind the 

embankment could be seen. He further testified that when surveying the 

water damage the next morning, he discovered objects from within his 

business’ buildings scattered across the property and a significant amount of 

sand and gravel strewn throughout. Mr. Wimberly also testified that Martin 

Marietta’s embankment looked visibly different on October 31, 2015, and 

that portions of its property could now be seen. 

Antonio Garcia Guerrero testified that he had worked on the Good 

River property for 17 years and had seen the property flood in 2013 and 2015. 

On October 30, he arrived at the property at 10:30 or 11:00 a.m., after it had 

stopped raining, and noted that the Colorado River looked normal at that 

time. He noticed the water level rising in the Colorado River around 3:00 

p.m. He identified that at 3:30 p.m., the level of the river was higher, but that 

water did not come onto the farm until around 6:00 p.m. He testified that 

after this time, the level of the water on the farm began rising quickly, and 

that emergency services arrived to rescue his coworker and his son around 

7:00 p.m., requiring boats to do so. He corroborated Mr. Wimberly’s 

testimony that more of Martin Marietta’s property was visible the day after

the flood. Guerrero also testified that the water flowing onto Good River’s 

property flowed northward, rather than in the normal eastward flow of the 

Colorado River. 

Jorge Lopez Tapia testified that he had worked at the Good River 

property for more than 20 years and had seen flooding in 1992, 2013, and 

2015, although the first two flood incidents caused no damage. On October 

30, the Colorado River was normal, and its water level was not rising at 10:30 

to 11:00 a.m., but had begun rising at around 3:00 or 3:30 p.m., when he began 

monitoring the river for rising water. Like Guerrero, Tapia noted that water 

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began rising faster around 6:00 p.m. and that it was around 6:00 to 6:30 p.m. 

that water began rising onto Good River’s property. He testified that he 

could see water coming over the dirt embankment on Martin Marietta’s 

property, with the flow of water quickly increasing until it was up to his chest. 

Like the other witnesses, Tapia indicated that no flowing water remained on 

Good River’s property by the next day. 

Jon McIntyre, Good River’s expert, who reviewed river and stream 

flow and rainfall data for October 30 concurred with Martin Marietta’s 

expert that modeling showed peak water flow in the Colorado River at the 

Good River property would have occurred around 5:00 p.m. 

Finally, Dennis Schiwitz, a heavy equipment operator at Martin 

Marietta, testified that when he arrived to work on October 30, it was not 

raining, but that water began rising at the Martin Marietta property around 

7:00 a.m., and the property was evacuated by 3:00 p.m. because there was 

three feet of water at the onsite office. He noted that the rise in water on 

October 30 was the most rapid he had seen at the Martin Marietta property. 

On October 27, 2017, Good River filed its petition for permanent 

injunction and exemplary damages in Texas state court, asserting claims for 

nuisance, negligence, negligence per se, and violation of Texas Water Code 

§ 11.086. On November 27, 2017, Martin Marietta timely removed the case 

to federal court based on diversity jurisdiction. 

The case proceeded to a jury trial on August 22, 2022. After Good 

River rested its case-in-chief, Martin Marietta presented its Rule 50(a) 

Motion for Judgment as a Matter of Law orally and in a written motion. 

When the Rule 50(a) arguments concluded, the trial court said “I think this 

is, frankly, a close case, but I’m going to reserve judgment. I’m going to let 

this go to the jury without prejudice for you to re-urg[e] this in light of 

whatever the jury is going to do with this.” 

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Three of Good River’s original claims were submitted to the jury: 

nuisance, Texas Water Code § 11.086, and negligence. The jury rejected 

Good River’s nuisance claims. The jury answered “yes,” to the questions 

whether “Defendants diverted or impounded the natural flow of surface 

waters in a manner that proximately caused damage to Plaintiff’s property” 

(under Texas Water Code § 11.086) and whether Defendants’ 

“negligence . . . proximately cause[d] the injury to Plaintiff’s property on or 

around October 30, 2015.” The trial court entered final judgment on that 

verdict on August 24, 2022, awarding Good River $659,882.00 in damages 

and denying all other relief. 

Martin Marietta filed its renewed motion for judgment as a matter of 

law under Rule 50(b). The trial court denied the motion on April 11, 2023. 

Good River Farm, LP v. Martin Marietta Materials, Inc., No. 1:17-CV-1117-RP, 

2023 WL 2904577 (W.D. Tex. Apr. 11, 2023). On May 5, 2023, Martin 

Marietta timely filed its notice of appeal from the trial court’s final judgment 

and its order denying its renewed motion for judgment as a matter of law. We 

have jurisdiction pursuant to 28 U.S.C. § 1291.

II

“A motion for judgment as a matter of law . . . in an action tried by 

jury is a challenge to the legal sufficiency of the evidence supporting the 

jury’s verdict.” Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014) (quoting 

SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008)). 

We “review de novo the district court’s denial of a motion for judgment as a 

matter of law, applying the same standard as the district court.” Carley v. 

Crest Pumping Techs., LLC, 890 F.3d 575, 578 (5th Cir. 2018) (quoting Heck 

v. Triche, 775 F.3d 265, 272 (5th Cir. 2014)). Under Rule 50(b), “[a] motion 

for judgment as a matter of law should be granted if there is no legally 

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sufficient evidentiary basis for a reasonable jury to find for a party.” Orozco, 

757 F.3d at 448. 

At this stage, a court’s review of a jury verdict is “especially 

deferential.” OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 

675 (5th Cir. 2016) (quoting SMI Owen Steel Co., 520 F.3d at 437)). We 

“view the entire record in the light most favorable to the non-movant, 

drawing all factual inferences in favor of the non-moving party, and ‘leaving 

credibility determinations, the weighing of evidence, and the drawing of 

legitimate inferences from the facts to the jury.’” Aetna Casualty & Surety 

Co. v. Pendleton Detectives of Miss., Inc., 182 F.3d 376, 378 (5th Cir. 1999) 

(quoting Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir. 1994)). A motion 

for judgment as a matter of law may be granted “[o]nly when the facts and 

reasonable inferences are such that a reasonable juror could not reach a 

contrary verdict.” Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir. 1998). “If 

reasonable persons could differ in their interpretation of the evidence, the 

motion should be denied.” Id. 

III

A. Texas Water Code § 11.086

Martin Marietta argues that as a matter of law, it cannot be liable 

under § 11.086 because that statute applies only to damage caused by 

“surface water” diverted or impounded by the defendant, and there was not 

legally sufficient evidence that “surface water” from Martin Marietta’s 

property crossed the Colorado River to flood Good River’s property on the 

other side. Instead, it argues that because the Colorado River flows between 

the properties, the water ceased being surface water when it reached the river 

and became flood water. Because Good River “did not establish that the 

water that flooded its pecan orchard was ‘surface water’ from Martin 

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Marietta’s operation,” Martin Marietta argues it is entitled to judgment as a 

matter of law. 

Good River counters that “[m]uch of Appellants’ argument can be 

summarized as claiming that once water touched the channel of the Colorado 

River no further liability could attach because the water instantly became 

state controlled floodwater.” It points to evidence showing that the water 

that came onto Good River’s property did not follow a defined course and 

had not gathered into or formed a natural body of water, “but rather flowed 

across and overwhelmed the riverine current” pointing to support from the 

expert modeling and eyewitness testimony. 

Texas Water Code § 11.086 states, “No person may divert or 

impound the natural flow of surface waters in this state, or permit a diversion 

or impounding by him to continue, in a manner that damages the property of 

another by the overflow of the water diverted or impounded.” Tex. Water 

Code Ann. § 11.086(a). It further states, “A person whose property is 

injured by an overflow of water caused by an unlawful diversion or 

impounding has remedies at law and in equity and may recover damages 

occasioned by the overflow.” Id. § 11.086(b). 

The term “surface water” is not defined in the statute but has been 

interpreted by Texas courts to mean water “which is defused over the ground 

from falling rains or melting snows, and continues to be such until it reaches 

some bed or channel in which water is accustomed to flow.” Dalon v. City of 

DeSoto, 852 S.W.2d 530, 538 (Tex. App.—Dallas 1992, writ denied). 

“Surface waters do not follow a defined course or channel and do not gather 

into or form a natural body of water.” Id. “The chief characteristic of surface 

water is its inability to maintain its identity and existence as a body of water, 

distinguishing it from water flowing in a natural watercourse.” Id. Damages 

are permitted under § 11.086 when “(1) a diversion or impoundment of 

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surface water, (2) causes, (3) damage to the property of the plaintiff 

landowner.” Dietrich v. Goodman, 123 S.W.3d 413, 417 (Tex. App.—

Houston [14th Dist.] 2003, no pet.) (emphasis omitted). 

Texas courts have denied liability where the defendant diverted or 

impounded a watercourse or floodwater, rather than surface water. A 

watercourse is defined as having “(1) a bank and bed, (2) a current of water, 

and (3) a permanent source of supply.” Dietrich, 123 S.W.3d at 418 (quoting 

Hoefs v. Short, 273 S.W. 785, 787 (Tex. 1925)). Floodwaters “are those 

which, generally speaking, have overflowed a river, stream or natural water 

course and have formed a continuous body with the water flowing in the 

ordinary channel.” Valley Forge Ins. Co. v. Hicks Thomas & Lilienstern, LLP, 

174 S.W.3d 254, 258 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) 

(quoting Sun Underwriters Ins. Co. v. Bunkley, 233 S.W.2d 153, 155 (Tex. 

App.—Fort Worth 1950, writ ref’d)). 

Texas courts have also held that “surface water” may change in 

character once it comes “under the control and direction of a watercourse.” 

Dietrich, 123 S.W.3d at 420; Dalon, 852 S.W.2d at 538-39 (“[I]f the 

floodwater forms a continuous body with the water flowing in the ordinary 

channel, or if it temporarily overflows presently to return, as by recession of 

the waters, it is to be regarded as still a part of the stream”) (internal citation 

omitted). 

The plain language of the statute does not require that the water which 

damages the property of another be purely surface water. Instead, the statute 

asks whether the defendant’s conduct diverted or impounded surface water 

in a way that causes damage to another when that water overflows. See Tex. 

Water Code Ann. § 11.086(a). Martin Marietta’s insistence that the 

damage be caused entirely from surface water appears to read a requirement 

into the statute that does not exist. The Texas Supreme Court instructs not

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to read requirements into a statute that do not appear to exist under the plain 

language. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“[W]hen

possible, we discern [legislative intent] from the plain meaning of the words 

chosen.”). 

Despite this, Martin Marietta raises a strong argument rooted in

Texas appellate court cases. The definitions provided for surface water by 

Texas appellate courts suggest that surface water continues to be such “until 

it reaches some bed or channel in which water is accustomed to flow.” Dalon, 

852 S.W.2d at 538. Here, the surface water from Martin Marietta’s property 

necessarily had to cross the Colorado River to reach Good River’s property. 

But Dalon also states that “[s]urface waters do not follow a defined course or 

channel and does not gather into or form a natural body of water.” Id. at 538. 

According to the witnesses, the current of water on the Good River property 

was moving south to north, instead of west to east like the Colorado River, 

suggesting it did not “follow a defined course or channel” or “gather into or 

form a natural body of water.” See id. This, among other reasons, makes the 

cited cases distinguishable. 

For example, in both Dalon and Dietrich, the courts discussed whether 

defendants had manipulated surface or floodwaters, and ultimately 

concluded that the defendants’ actions impounded only water that had 

already become floodwater prior to the impoundment. Dalon, 852 S.W.2d at 

539 (concluding that the overflowed creek is a natural waterway, and once 

rainfall enters the creek it is no longer surface water and cannot give rise to 

liability under § 11.086); Dietrich, 123 S.W.3d at 419-20 (concluding that the 

water flowed downstream in a well-defined bed was not surface water when 

impounded). Here, Martin Marietta does not argue that it impounded 

floodwater, but only that impounded surface water transformed into 

floodwater when it reached the Colorado River. It does not dispute that the 

water in its freshwater pit was surface water. 

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In the additional cases cited, such as Bonin v. Sabine River Authority of 

Texas, the district court concluded that plaintiffs could not recover because 

they did not “include any facts in the operative complaint to even remotely 

suggest that the waters which damaged their properties were surface 

waters.” Bonin v. Sabine River Auth. of Tex., No. 1:17-CV-00134-TH, 2019 

WL 1246259, at *6-7 (E.D. Tex. Mar. 1, 2019), report and rec. adopted, No. 

1:17-CV-00134-TH, 2019 WL 1244705 (E.D. Tex. Mar. 18, 2019), aff’d, 961 

F.3d 381 (5th Cir. 2020). The surface water flowed into the Sabine River and 

the damage occurred downstream, so the surface water had been flowing in 

the natural channel and transitioned to floodwater. Id. Likewise, Salazar v. 

Sanders denied liability for downstream flooding. 440 S.W.3d 863, 873 (Tex. 

App.—El Paso 2013, pet. denied). Here, Good River alleged facts that 

surface waters damaged its property and do not indicate that any water 

flowed downstream. Instead, the water ran perpendicular to the river to cross 

it onto Good River’s property. 

As Good River notes, in most of these Texas appellate decisions, the 

water had been traveling in a natural watercourse before the defendant 

diverted it. It notes that unlike the cited cases, “surface water detained by 

Appellants did not enter the stream and flow down the course of the river, 

but rather crossed over the normal flow of the river and did not become a part 

of the natural watercourse.” Because of this, the case presents a unique set 

of factual circumstances that have not been previously addressed by any case. 

The district court found support for its holding in Texas Woman’s 

University v. The Methodist Hospital, 221 S.W.3d 267 (Tex. App.—Houston 

[1st Dist.] 2006, no pet.). There, the district court denied summary 

judgment to defendants because it could not show that the damage to 

plaintiff’s property “was flooded exclusively due to a . . . natural 

watercourse.” Id. at 280. Importantly, the Texas Woman’s University court 

focused on the identity of the water at the time it was diverted—not the 

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identity of the water when it flooded plaintiff’s property. Id. at 279-83; see 

also Tenaris Bay City Inc. v. Ellisor, No. 14-22-00013-CV, 2023 WL 5622855, 

at *8 (Tex. App. —Houston [14th Dist.] 2023) (“[T]he relevant inquiry is 

whether it was surface water at the time of diversion.”) (emphasis added). 

Martin Marietta concedes that the district court properly instructed 

the jury on the definition of “surface water.” Further, the jury relied on 

evidence including testimony that Martin Marietta’s embankment had 

significantly decreased, sand and gravel was found strewn about Good 

River’s property, and eyewitness accounts of water surging from Martin

Marietta’s pit across the Colorado River inundated Good River’s property.

As noted by Good River, the waters that flooded its property were not a 

“continuous body of water flowing in the ordinary channel.” Instead, as 

noted by witnesses, “the river was flowing from West to East, while the 

waters that entered Good River’s property were flowing from South to 

North.” The jury apparently concluded that the water was not overflow from 

the river, but surface water accumulated in such quantity that it ran contrary 

to the riverine flow. A motion for judgment as a matter of law may be granted 

“[o]nly when the facts and the reasonable inferences are such that a 

reasonable juror could not reach a contrary verdict.” Baltazor, 162 F.3d at 

373. Here, “reasonable persons could differ in their interpretation of the 

evidence,” and accordingly, the district court properly denied the Rule 50(b) 

motion for judgment as a matter of law and the jury verdict should be 

affirmed. Id.

B. Negligence

Turning to the jury’s finding of negligence, Martin Marietta argues 

that Good River did not adduce legally sufficient evidence that the flooding 

of its pecan farm was proximately caused by the negligence of Martin 

Marietta, nor that it owed an independent duty to control floodwater. It also 

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argues that negligence cannot be established when the defendant does no 

more than furnish a condition which makes a plaintiff’s injuries possible. 

Good River argues that its injuries are proximately traceable to the 

actions of Martin Marietta in diverting and impounding surface water. It

contends that Martin Marietta had a duty to control accumulated surface 

water and a general duty of care arising from the parties’ particular 

circumstances, particularly where Martin Marietta knew there would be a 

risk of flood because its embankments had breached during a prior flood in 

2013 and were not fully repaired prior to the 2015 flood. As to proximate 

cause, Good River points out that direct witness testimony established 

significant impoundment of surface waters occurring on Martin Marietta’s 

site before Good River’s property suffered any intrusion of water, and that

witnesses testified that Martin Marietta’s embankment was constructed of 

loose sediment without meaningful engineering. Finally, Good River notes 

that Martin Marietta did more than merely furnish a condition because 

evidence showed a direct, causal connection between Martin Marietta’s 

activities in modifying and utilizing its site, and the fact that the Colorado 

River was already subsiding at the time the deluge engulfed Good River’s 

property. 

Negligence requires showing that a legal duty is owed to a plaintiff, 

breach of that duty, and that damages were proximately caused by that 

breach. See, e.g., Nabors Drillings, USA, Inc. v. Escoto, 288 S.W.3d 401, 404 

(Tex. 2009). The parties do not dispute that the State of Texas has a nondelegable duty to control floodwaters. TWU, 221 S.E.3d at 278. A private 

defendant cannot be held liable for failing to control floodwaters because 

Texas and Texas alone possesses that duty. Id. Martin Marietta’s theory 

here is similar to its theory regarding Texas Water Code § 11.086: its duty to 

control surface water ended when the surface water mixed with the Colorado 

River floodwater before flowing onto Good River’s farm. But the jury, when 

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given the elements for negligence, found that it was foreseeable that surface 

water accumulating in Martin Marietta’s pit would have overflowed and 

resulted in a deluge on Good River’s property. Regardless of whether Martin 

Marietta had no duty to control floodwaters, it had a duty to control the 

surface water impounded on its property. The jury could reasonably 

conclude that it was foreseeable that surface water would gather in such large 

quantities that when it overflows, it could flood surrounding land. 

As to proximate cause, the jury heard evidence that the Colorado 

River’s flooding peaked well before Good River was flooded and that 

eyewitnesses saw the water crest over Martin Marietta’s property and head 

toward Good River’s farm. Concluding that Martin Marietta proximately 

caused Good River’s injury was reasonable given the evidence. And we must 

“leav[e] credibility determinations, the weighing of evidence, and the 

drawing of legitimate inferences from the facts to the jury.” Aetna Casualty 

& Surety Co., 182 F.3d at 378. 

Finally, as to Martin Marietta’s argument that it merely furnished a 

“condition” leading to Good River’s injuries, its understanding does not 

comport with that of the Texas Supreme Court. To be clear, the parties do 

not dispute but-for causation. The Texas Supreme Court uses the word 

“condition” to describe scenarios with “but-for” causation without 

proximate causation. See Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 

149 (Tex. 2017) (holding that loaning a friend a car was a “condition” that 

did not create liability for an accident 18 days later); Union Pump Co. v. 

Allbritton, 898 S.W.2d 773 (Tex. 1995), abrogated by Ford Motor Co. v. 

Ledesma, 242 S.W.3d 32 (Tex. 2007) (holding that a fire was a “condition” 

when, hours after it was extinguished, a person slipped and fell trying to close 

a valve on the site of the fire). Here, the conduct was not so attenuated—the 

flooding flowed rapidly from Martin Marietta’s property, over the Colorado 

River, and onto Good River’s property. Accordingly, Martin Marietta did 

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not merely create a condition leading to injury and the jury’s verdict on 

negligence should be affirmed. 

IV

Although this case presents a close call, the jury verdict demands our 

deference. Because sufficient evidence supports its conclusions that Martin 

Marietta violated Texas Water Code § 11.086 and committed common law

negligence, we AFFIRM.

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